Prosecutorial Conflicts of Interest and Excessive Use of Force by Police

5 Pages Posted: 5 Sep 2015

See all articles by Peter A. Joy

Peter A. Joy

Washington University in St. Louis - School of Law

Kevin C. McMunigal

Case Western Reserve University School of Law

Date Written: August 11, 2015

Abstract

Investigations into the deaths of Michael Brown and Eric Garner raised important questions about prosecutorial conflict of interest when investigating allegations of excessive use of force by police. Both Brown and Garner were unarmed and in both instances died at the hands of the police. Neither officer involved in their deaths was prosecuted.

Concern about prosecutor conflict of interest in handling allegations of excessive use of force by police is widespread. Many say that independent review by special prosecutors in such cases is necessary in order to increase public confidence in the criminal justice system. Some commentators argue that without a special prosecutor there is unequal justice, that is, different justice for police officers than for others in the community.

In this article we analyze whether current legal ethics conflict of interests rules require a prosecutor to withdraw from investigating and evaluating charges against police when there are allegations of excessive use of force. We also consider whether a special prosecutor is required in such cases, and whether a special prosecutor is desirable and consistent with other overarching goals of the criminal justice system. In addition to examining these issues, we make recommendations for bar authorities to provide more guidance to prosecutors.

Keywords: conflict of interest, prosecutor, justice, excessive use of force, police use of force, legal ethics, justice

JEL Classification: K14, K19, K49

Suggested Citation

Joy, Peter A. and McMunigal, Kevin C., Prosecutorial Conflicts of Interest and Excessive Use of Force by Police (August 11, 2015). ABA Criminal Justice, Summer 2015; Washington University in St. Louis Legal Studies Research Paper No. 15-09-06. Available at SSRN: https://ssrn.com/abstract=2478800

Peter A. Joy (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
313-935-6445 (Phone)

Kevin C. McMunigal

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
2163683613 (Phone)
2163682086 (Fax)

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